Hulley and Harkins (Child support)

[2019] AATA 1219

Hulley and Harkins (Child support) [2019] AATA 1219 (19 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC015722

APPLICANT:  Mr Hulley

OTHER PARTIES:  Child Support Registrar

Ms Harkins

TRIBUNAL:Member W Kennedy

DECISION DATE:  19 March 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income - whether the estimate should have been refused - estimate of income likely to be less than the actual income - discretion correctly exercised to refuse - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Hulley and Ms Harkins are the parents of children in respect of whom there is a child support assessment.  This application for review concerns the income of Mr Hulley used in the child support assessment.

2. Prior to 5 September 2018 the child support assessment was based on Mr Hulley’s 2016/17 taxable income of $67,844.00.  On 5 September 2018 the Child Support Agency of the Department of Human Services (the Department) decided to accept Mr Hulley’s estimate that his income from 5 September 2018 to 30 June 2019 would be $8,000.00.  The Department annualised this estimate to $9,765.00 and applied that figure to the child support assessment.

3. On 7 September 2018 Ms Harkins objected to the decision of 5 September 2018, stating that she believed that Mr Hulley was not sincere in his claim that ill health substantially affected his income.  On 12 December 2018 a Department objections officer decided to allow Ms Harkins’ objection, finding that, based on the information subsequently provided by Mr Hulley, his income was greater than the estimate previously accepted.  As a result the child support assessment reverted to being based on an adjusted taxable income for Mr Hulley of $67,844.00. 

4. On 7 January 2018 Mr Hulley applied to this Tribunal for review of the decision of the Department.  The application was heard and determined on 19 March 2019.  Mr Hulley and Ms Harkins both attended by conference telephone and gave their oral evidence under affirmation.  The parties had access to the papers provided by the Department, which were numbered 1 to 148.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide whether the estimate provided by Mr Hulley on 5 September 2018 should be used in the child support assessment.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act).  Under section 60 of the Act, a parent may lodge an estimate of their income and, under certain circumstances, the Department may accept that estimate for child support assessment purposes.  In the current case Mr Hulley made an estimate on 5 September 2018 and this was accepted by the Department. 

2. Based on the information supplied by Mr Hulley the Department calculated that the applicable estimate was $9,765.00 and this was applied to the child support assessment with effect from 5 September 2018.

3. The documents before the Tribunal show that Mr Hulley advised the Department that his income was $8,000.00 from the last job he had completed and that he received rental income of $41,000.00.  Against the former he declared expenses of $2,500.00 and against the latter deductions of $38,000.00 (folio 29).

4. In response to further inquiries from the Department, on 29 October 2018, Mr Hulley provided more detailed information.  He stated that between 1 July 2018 and 31 August 2018 he had received self-employment income of $29,975.00 against which he claimed expenses of $9,406.00.  He also stated that for the financial year ending 30 June 2019 he expected to receive rental income of $46,800.00, against which he claimed deductions of $27,970.00.  Assuming that Mr Hulley has no income from self-employment after 5 September 2018, the methodology found in subsection 60(4) of the Act produces an estimate figure of $18,830.00.  At the hearing Mr Hulley said that he could not explain the discrepancies but that he accepted that his income figure should have been $18,830.00.  This means that the estimate provided on 5 September 2018 is incorrect and cannot be accepted by the Registrar.  As a result the original decision to accept the estimate is set aside and the objection decision affirmed.

DECISION

The decision under review is affirmed.